Can federal funding programs stifle open discussion of Israel on university campuses? No, not under the First Amendment or basic principles of academic freedom. Recently, Title VI of the Higher Education Act (HEA), and the funding of Middle East Studies Programs in particular, has come under attack. Unfortunately, those seeking to suppress speech on university campuses are relying on a misrepresentation of the facts as well as the law to do so.
Congress has already addressed and rejected the notion that the U.S. government should be reviewing the content of academic programming that receives Title VI funding.
In 2008, after years of lobbying, Title VI of the HEA was amended by adding a description of the types of programs that were eligible for Title VI funding. The new "application" subsection required that applicants provide an explanation of how their programs would provide "diverse perspectives," a broad term that was never defined.
The original proposed amendment also included provisions that were not adopted: a requirement that the extent of a program's diverse perspectives be considered as part of the "Selection Criteria" for funding, and a grievance procedure to enforce the "diverse perspectives" requirement. Congress rejected both of these elements, and they were not included in the final version of the 2008 amended law.
Some advocates are now claiming that since the 2008 amendments, the law "guarantees" funding will be evaluated based on the extent of a program's diverse perspectives. This is simply not an accurate representation of the law.
Groups such as The Louis D. Brandeis Center for Human Rights under the Law and the AMCHA Initiative have led this campaign to defund Middle East Studies Programs under Title VI by claiming that they seek to enforce this "diverse perspectives" clause as they interpret it. However, their true intentions are clear: these organizations are attempting to squelch any speech on college campuses that is critical of Israel and its policies.
The Brandeis Center relies in part on a "study" conducted by the AMCHA Initiative, which examines public events hosted by UCLA's Center for Near East Studies from 2010-2013. AMCHA claimed that its "analysis" found that 93 percent of the events they reviewed included "anti-Israel bias," a claim repeated by the Brandeis Center and others, including the office of Rep. Nita Lowey. Yet a closer look at this study reveals its unreliable nature. AMCHA itself admits that it only reviewed 28 of the 40 programs that it designated as "related to Israel." The 12 events that were not analyzed included a series of events on Israeli music and a presentation by an Israeli academic on Israel's acceptance of Lebanese immigrants.
AMCHA's definitions used in this study, particularly their claims of what constitutes anti-Semitism, have already come under intense scrutiny, including in this open letter by heads of several Jewish Studies programs at North American universities. The signers declare that they find AMCHA's actions "deplorable" and that AMCHA's definition of anti-Semitism "is so indiscriminating as to be meaningless." AMCHA has repeatedly proved itself to be unreliable, reactionary, and engaged in dubious pursuits, such as spying on student groups. Its leader has engaged in direct hate speech against Muslims.
The purpose of Title VI of the HEA is to provide American students with knowledge of cultures and languages of areas of the world which are vital to American foreign policy. Yet the Brandeis Center and others are insisting that accuracy in presenting the perspectives in a particular region should be secondary to ensuring that Israel is treated favorably.
These organizations are pursuing their campaign to chill speech on campuses via Title VI of the HEA after a series of defeats in attempting to paint speech critical of Israel as anti-Semitic. There are, of course, already safeguards in place to prevent true anti-Semitic content on college campuses. The Department of Education (DOE) in response to several complaints filed by AMCHA and others under Title VI of the Civil Rights Act has determined, after several years of fact-intensive investigation, that speech critical of Israel, no matter how offensive to some, is a reasonable part of an experience on campus. Following these defeats, this coalition changed tactics, attacking university programs for being "anti-Israel" and in need of "balancing."
The suggestion that each area studies program provide "balance" in programming is untenable, as well as contrary to the purpose of Title VI of the HEA. By the standard suggested by the Brandeis Center, the U.S. government would also have to ensure that East Asia Studies Programs, for example, include sufficient programming that is "pro-North Korea." For every event that addressed Chinese technological advances, the department would also, ostensibly, have to provide an event on China's policies toward Taiwan.
The Brandeis Center has gone so far as to insist that its proposed committee to monitor and ensure Middle East Studies Programs' "balance" must include scholars of Israel Studies. It seems unthinkable that the Center would similarly suggest that the committee to oversee those very Israel Studies programs must include Middle East Studies scholars or Palestinian scholars, yet if the true intention is "balance" that would be the logical conclusion. The true intention is again laid bare: this is not about balance, but about silencing speech with which the Center disagrees.
The Middle East Studies Association has responded to the Brandeis Center, writing in a letter, "your demand that Title VI be defunded, apparently in order to serve your political agenda of stifling open discussion of an issue of critical national concern, not only threatens the academic freedom rights of the scholars and teachers at those centers but also does a grave disservice to the United States."
The Supreme Court has found that nowhere is freedom of speech more important than in our schools and restrictions of such speech "would imperil the future of our Nation." They have also concluded that the government may not try to control speech through the disbursement of funds. Yet this is exactly what the Brandeis Center and its coalition is proposing Congress do. While claiming they are concerned with academic integrity and balance, these groups are seeking to silence one side of a debate. The demand that the DOE wield the mighty stick of withholding funds not only flies in the face of the purpose of the HEA, but would also, if implemented, violate the Constitution.
Hale is research scholar and professor emerita, Departments of Anthropology and Gender Studies and former co-director, Center for Near East Studies, University of California, Los Angeles. Wolf is a third-year law student at University of California Hastings Law and a law clerk with Palestine Solidarity Legal Support.